Day 11 – DATE-BAH’S DICTUM IN BIELBIEL’S CASE CANNOT SAVE JEAN MENSAH FROM MOUNTING THE WITNESS BOX
To those who are busily sharing the dictum of Date-Bah JSC, as he then was, in Bielbiel v Daramani & AG to support the 1st Respondent’s argument that Jean Mensah is not mandated to mount the witness box to give any evidence because the petitioner has not allegedly discharged the burden of proof and persuasion, should read the portion of the judgement where Date-Bah explained as follows:
“Ordinarily, the burden of persuasion lies on the same party as bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move on to a defendant. The cumulation on the defendant of the evidential burden on the issues to be tried in a case can result in the right to open the case shifting to the defendant. For instance, where the burden of producing evidence on every issue in a case lies on the defendant, he or she will have the right to open the case, even if the burden of persuasion remains on the plaintiff.”
What this essentially means is that, even if, for purposes of argument, it is accepted that the petitioner has not discharged the evidential burden, the nature of this petition and the pleadings, clearly indicate that “the burden of producing evidence on every issue in a case (petition) lies on the defendant (1st Respondent).” This argument is fortified by the Court’s own advice to counsel for the petitioner that the interrogatories could be answered during cross examination of witness of the 1st Respondent.
Remember, when the petitioner filed the applications for interrogatories and inspection of documents, it was intended to give the petitioner opportunity to FULLY discharged the burden of proof due to the nature of the pleadings. Let’s remind ourselves once again that, the petitioner is not in court to lead evidence on pink sheets but the EC’s own declaration which it has indicated was made in error. So when the court disallowed the interrogatories and inspection of documents, a great deal of evidential burden shifted to the 1st Respondent.
It is incorrect to latch on to Date-Bah’s dictum in the Bielbiel’s case to suggest that a defendant cannot be compelled to give evidence. In the Bielbiel’s case, the issue was not about whether or not the defendant should mount the witness box or not after the plaintiff had given testimony. The issue was about the defendant being offered th chance to begin oral testimony even before the plaintiff was head. It was on this basis that Date-Bah explained that “what is being extended to the first defendant is a right or, as we referred to it in court earlier, a “privilege”, and not an obligation; accordingly, if he is opposed to it, it should be withdrawn. The motivation behind the Court’s offer to the first defendant to open his case first was one of efficient case management. However, if the first defendant is this strongly opposed to opening the oral hearing, he should not be compelled to.”
Prof Date-Bah went on further to explained that the fact that the1st defendant cannot be compelled to open his case first does not mean that “his election not to open the case does not DEROGATE from the incidence of the burden of producing evidence on any particular issue” (emphasis is mine). What this means is that, even though first defendant in the Bielbiel case was not compelled to open his case before the plaintiff, it did not in anyway suggest that he was not obliged to give evidence as in that case, the facts and pleadings suggested that the burden of proof shifted to first defendant.
On the basis of the above explanation, Date-Bah’s dictum cannot be relied on to persuade the Justices from shielding Jean Mensah not to mount the witness boss. And this applies also to 2nd Respondent’s witness. In this petition, the 1st Respondent is not being asked to mount the witness box and adduce to beef up the Petitioner’s case before the petitioner is made to do so. More so when the Respondent’s have elected to file witness statements. The filing of the witness statements was enough proof that the Respondents had issues to respond to. This issues could have only been contained or raised by the petition. Unless the Respondents want the court to believe that the witness statements they filed was in response to nothing in the petition, and that they intend to withdraw same.
As indicated earlier, the nature of the petition and the pleadings, as explained by Date-Bah in the Bielbiel’s case, shift some degree of burden of proof to the Respondents, particularly the 1st Respondent while the burden of persuasion rest with the petitioner. Those who have gone to town with Date-Bah’s dictum should go back and read it properly. I am hopeful that the Justices will not be swayed by the misleading commentaries by some commentators in a way to deny Ghanaians the opportunity from hearing from the woman who conducted an election that she has admitted was declared in error. What caused the error and how the supposed corrected figure was arrived at needs to be ascertained, and she is the only person who can provide evidence on that.
Amorse Blessing Amos
Deputy Greater Accra Regional Youth organizer-NDC